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H. OP R.]

Treaty with Great Britain.

[MARCH, 1796.

Thus, in page 160, speaking of the powers of poral, and the Commons, who are considered Parliament, he says:

omnipotent; they can change the succession to “ It hath sovereign and uncontrollable authority in the the Crown, they can change the established relimaking, confirming, enlarging, restraining, abrogating, gion of the land, they can change the Constitution repealing, reviving, and expounding of laws, concerning of the Kingdom, and of Parliament itself, says matters of all possible denomination, ecclesiaslical or Blackstone, and can do every thing that is not temporal, civil, military, maritime, or criminal. This naturally impossible. being the place where that absolute despotic power, He thought then they might rightly adopt the which must in all Governments reside somewhere, is sentiments of the English Bishop, quoted by the intrusted, by the Constitution of these Kingdoms, all gentleman from Pennsylvania, as applicable to mischiefs and grievances, operations, and remedies, that the British Government, and he would here antranscend the ordinary course of the laws, are within swer that gentleman, that the English Bishop the reach of this extraordinary tribunal, it can regulate which he quoted, spoke not only the language of or new-model the succession to the Crown, as was done in the reign of Henry the eighth, and William the a British King, of a British House of Lords, but third ; it can alter the established religion of the land, the genuine language of a commoner of England as done in a variety of instances in the reigns of King also; for it is the true doctrine of the British GoHenry the eighth and his three children ; it can change vernment, in all its branches and departments, and create afresh the Constitution of the Kingdom and from the King on the Throne even down to the of Parliaments themselves, as was done by the act of corporal in the army, and from the Parliament union and the several statutes for triennial and septen down to the justice in the country, that the people nial elections; it can, in short, do every thing that is have nothing to do but to obey ; passive obedience not naturally impossible, and therefore some have not and non-resistance is their political creed. And scrupled to call its power by a figure rather too bold - if that gentleman meant by his inquiry to know the omnipotence of Parliament. True it is, that what whether that House was worse off than a British the Parliament doth, no authority upon earth can House of Commons, because they do not possess undo."

the same omnipotent power ; because they could From this authority he thought the statement not alter the election of their President as analofullị, proved that the great mass and body of the gous to the succession of the Crown ; because they people of Great Britain had no Constitution, no could not alter the religion of the land, or the will

, no political liberty or freedom, but what Constitution of their country; or, because they they had on sufferance and solely dependant on are public servants, and not despotic masters of the will of their masters; for it was found that the people, then his answer was, that he humbly that absolute, undefined, uncontrollable, and de- conceived that they were worse off, and his prayer spotic power, which Blackstone says is necessary to God was, that they might forever remain so ; in all Governments to be lodged somewhere, is in or, if the gentleman 'meant, by his inquiry, to fact lodged in, or rather assumed by the King as know if the people of America were worse off the Executive of the nation, and that the same than the people of Great Britain, because they absolute, undefined, uncontrollable and despotic are sovereigns and not slaves, because they have power, is also assumed by the Parliament as the public servants and not masters, then his answer Legislature of the nation. The great body of the was the same, and his prayer the same. But, people, have, therefore, two absolute masters

, that gentleman, whose abilities he admired, and whose powers extend, as they had seen, to the di- whose worth he esteemed, would never have rection of all possible objects whatsoever, both quoted the sentiments of an English Bishop as a civil and sacred, whose will is the very essence sarcasm upon his observations had he known the of the Constitution itself, which must necessarily sentiments of his heart, or understood the ideas be changed as that will shall change or vary. he meant to communicate; nor would any of

It had been said, that the British Constitution those who have followed that gentleman's examwas made up of immemorial usages and customs; ple have treated him with the severity they had it is true that it is known by usage and custom, done had they not totally mistaken his meaning. but what are those usages and customs? They He would therefore proceed to a consideration are neither more nor less than those things which of the principles and Constitution of their own the King and Parliament have been pleased to Government, hoping that he should be better do, in order to balance those two supreme powers understood. in such manner as they, in their own discretion, Blackstone, with all his historical, political, and have thought it proper, in order to guard and pro- legal knowledge, had no idea of a Government tect the existence of both, that one should never that ever had or could exist like that of the United totally destroy the other, and share the whole boon States. He says, that it is not to be supposed of power to itself alone. But Blackstone says, that that there ever was a time when men, from the those usages and customs can be altered and new impulse of their reason, and a sense of their wants ones introduced; but by whom ? By the will of the and weakness, met together, entered into a comgreat body of the sovereign people? No; they pact, and chose their Governor; and it seems have no soveriegnty, no will, nothing to do in this universally to have been the case, in regard to all great business; but all this must and may be done Governments heretofore found in the world, that by the sovereign will and pleasure of the King, they have been established by conquest, or founded who is considered as a God, and the three estates in usurpation, without any original compact or of the realm, the Lords spiritual, the Lords tem- general agreement of the people, prescribing and

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MARCH, 1796.)
Treaty with Great Britain.

[H. OFR. defining the rules by which they would be go- is the express will of the great body of the people verned. But it is to be remembered, that Black- of America, prescribing rules for

her own selfstone wrote before America was born into the government? Have we so soon forgot the domipolitical world; that with her birth commenced nation of that Government, under whose oppresa new era, and that the principles and Constitu- sion we so lately groaned, and become so enation of the American Government are dissimilar mored with its excellence as to lose sight of the from all others that now are, or ever have been principles and Constitution of our own Governin existence.

ment, and to assimilate ours to that of Great BriThe first principle of the American Govern- tion? Compare our President to their King! ment, said he, is, that nothing is surrendered, but Our Senate to their House of Lords! And we all retained by the people; that the sovereign de ourselves assume the prerogatives of their House spotic power, which Blackstone says, is vested in of Commons ! the King and Parliament by the British Consti This, he was sure, could not be obeying the tution, is with us not vested anywhere, but is in- will of the great body of the people of America. herent in the people; and it is agreed by every No, let us leave this pursuit, return to our own one, that the Constitution of the United States is Constitution, take that as our guide, and considerthe expression of the sovereign will of the people ing it a supreme law to us, and the only source reduced to writing, and now before us. If the from whence we derive all our authority, let us will of the people is then the sovereign despotic consider the PRESIDENT, the Senate, and ourauthority, that will is the authority of the United selves, as the agents of the people, to execute their States, and if the Constitution is the expression will, expressed in the Constitution, and without of that sovereign will, the several constituted au- destroying its features, abrogating any of its parts thorities stand as the subordinate officers or agents by strained construction, let us take that plain of the people, to execute their will, and derive all meaning, which was, and now is, put upon it by their authority from the Constitution.

those who made it. How then, said he, does the principle of our But before he proceeded to a construction of Government compare with that of Great Bri- that instrument, which he deemed a supreme law tain? How does our Constitution compare with in its nature, he would premise, that it was an their Constitution ? How does our PRESIDENT universal and fixed rule in all Courts and judicial compare with their King? Their King stands bodies, in construing all laws and all instruments as the Constitutional god, and passive obedience whatever, never to do away an express and posiand non-resistance are due from the people to his tive clause, or sentence, by implication from ansovereign will; but our President stands as a other clause or sentence, which is not express and subordinate officer or agent of the people, and positive to the same subject. This is a rule so passive obedience and non-resistance are due from plain and so well established, and so reasonable him to the will of the sovereign people. How in itself, he thought the man who would deny it, does the Senate compare with the House of must have lost his senses, and be without hope, Lords, who are hereditary, and, acting with the for he presumed there was not one of his constiKing, are a constituent part of that absolute de- tuents, even in the lowest grade, who ever sat spotic power, which Blackstone mentions as rest- upon an arbitration to decide a dispute between ing in Parliament, when our Senators are subordi- two of his contending neighbors, but that would nate officers chosen by the people, accountable to say, it was absurd to contradict this position, and them, and placed as agents to execute the despotic that it was a rule as well known as that 'men and absolute will of the people? And how does were to judge by the faculty of their reason. this House compare with the House of Commons, Then, said he does not the Constitution, which when the Commons are another constituent part is a law to us, declare, in as positive a manner as of that absolute despotic power? How does our words can express it, that the PRESIDENT “shall Legislature compare with a British Parliament, have power, by and with the advice and consent when the will of that Parliament is the only of the Senate, to make Treaties, provided twoConstitution of that Kingdom, and which has thirds of the Senators present concur, and that he competent power, and can change the succession shall nominate, and, by and with the advice and to the Crown, the religion of the land, the Consti- consent of the Senate, shall appoint ambassadors, tution itself; and, in short, can do everything, other public ministers, and consuls ?" and no one can say, why do you so? When, on Was it not clear that the people, when forming the other hand, our Legislature derives all its ex- this Constitution, contemplated 'themselves as istence, and all the powers it can possess from the standing in relation to foreign nations, in the Constitution, which is the will of the people. same situation as one individual stands in relation

How was it possible, that things should be to another; and, therefore, that it was necessary called analogous which were so totally different for them to make provision for holding negotiain every part and particle of them? To what tions, making compacts and Treaties

, which purpose, then, are all those arguments drawn from should, when

made, be mutually binding on both the Constitution of Great Britain ? To what pur- nations, as contracts made between individuals are pose all those numerous volumes of parliamentary binding on each individual? Is not the power of debates, journals, and reports, to prove the prac- making those national contracts expressly given tice and prerogatives of that despotic Court ? to the President and Senate? Is there a word What have they to do with a Constitution, which in the Constitution which says, that any other

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man, or set of men, shall have any voice in this sumed, however, that this position would not be business ? Not a syllable of the kind. In what | denied, but that it would be agreed, that the will light, then, must the President and Senate con- of the people was the only absolute despotic sider themselves, when they were making the power in our Government; that the Constitution present Treaty ; must they not necessarily con- was the expression of that will, and he thought it sider themselves as the sole agents for the nation, must then necessarily follow, that a Treaty made for this purpose, and must not the nation with by the sole agents mentioned in the Constitution, whom they were contracting, consider them in must be a Treaty made under all the authority of the same light? How, then, were they to con- the United States that exists for that purpose, duct themselves in this business? Why, every and therefore that the present Treaty received one, he thought, must say that they were to do all its binding force, it ever can have (if it be the same, as they, in their discretion, should sup- Constitutional) upon the two nations, from the pose the nation for whom they were contracting, moment of its ratification, and that it is now a would do for itself, were they all collected to-law conformable to the express declaration of the gether, furnished with the same information, pos- Constitution ; and that not only the Judges of the sessed of the same view of the subject, as the several Courts. but every other officer of Governagents themselves were at the same time; sup- ment, and they themselves were to regard it as posing the nation to be exercising their dispas- such; nothing that they can do will give any adsionate reason, and making the contract for them- ditional force, or create any new obligation. selves. The agents, then, must do that, which, But it is said that by another clause in the from a full view of the subject, and all existing Constitution “ No money shall be drawn from circumstances, they judged best for the nation. the Treasury but in consequence of appropria

Is there a man on this floor who will come for- tions made by law;" that Treaties may stipulate ward and say, that the PRESIDENT and Senate for the payment of money, and this House must, have not done this? That they have not done therefore, necessarily become judges when they what they judged was best for the nation, under are called upon to appropriate for that purpose. all existing circumstances, and what they judged Let us contrast this clause of the Constitution the nation would do themselves, possessing the with the one which says the President and Sensame view of the subject? He believed no one ate shall make Treaties. Was there a word in would assert this.

this clause about appropriations mentioned about Then, at what time was this contract to receive Treaties? No, not a word. Shall we, then, by its binding force? If the agents in making of it, implication and construction, drawn from a clause have kept within the limits of their agency, is it not positive to the same subject, fix a meaning not binding on the principals the moment it is which shall do away a positive and direct clause concluded by the agents ? If he were to appoint an to that subject? This is a complete violation of agent to contract for him, and give him his power the rule of construction laid down, and perverting of attorney for that purpose, and pursuant to that the order of reason. power he makes a contract, would it not be bind But gentlemen do not pretend to carry their ing on him the moment it was completed by that ideas quite so far as this, and they say they do agent? He believed no one would deny this. not contend for the power of making Treaties, Was not, then, the Constitution a sufficient letter but for a co-operative power in carrying them of attorney to the President and Senate to make into effect, or a negative power to check them when Treaties?

so bad as that, they ought not to be carried into But it is said that Treaties made under the au- effect. In his mind it amounted to neither more thority of the United States shall be the supreme nor less than this, that they claim a right, not to law of the land, and that for them to be made make Treaties, but to break them, when they are under the authority of the United States, they not agreeable to their taste. must have the sanction of that House, being a On this ground, it is asked with an astonishing constituent part of that authority:

air of assurance, can Treaties repeal laws, or laws If he comprehended the meaning of those gen- repeal Treaties? and if they can do neither, how tlemen who preached this doctrine, they had the is it possible they should both exist at the same same idea of the authority of the United States, time, and operate upon the same objects, while as Blackstone had of that of Great Britain, that they are opposed to each other ? This is a knotty is, as he had already proved, that that absolute point; but he would attempt to answer it. He despotic power, which, he says, is necessary in all had no idea of a Treaty repealing a law, or a law Governments to be lodged somewhere, is lodged repealing a Treaty, accurately speaking, but he in the PresidENT, Senate, and House of Repre- had a very clear idea, that a Treaty, in its nature sentatives. But he had already stated, that that abrogates and does away all pre-existing laws of absolute despotic power, which Blackstone speaks both nations making it, which stand in opposition of, is inherent in the people. Will those gentle to the Treaty; and that opposing laws executed men deny this statement? If they will, he was after a Treaty made, may break and violate the willing they should go where they could enjoy Treaty, and commit the plighted faith of the nadespotic power; but he was not willing that the tion pledged in the most solemn manner. PRESIDENT, Senate, and House of Representa To simplify the idea. As an independent tives, should be changed into King, Lords, and moral agent, his will was the sovereign power by Commons, to gratify their feelings. He pre which he was to regulate all his moral actions.

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In the exercise of this power, he had a right to when trading to her ports? It cannot be denied, prescribe such rules for the regulation of his own and she carried the exercise of this right so far as actions as he pleased; his neighbor has the same to prohibit our trade and capture our vessels when right, but neither of them have a right to pre- going to those ports over which she claimed the scribe rules to control the actions of the other. right of control. The rules, then, which they prescribe, are laws He would now ask, if they, by legislation. could regulating their actions, and applying to them- restrain those proceedings of hers? He answered, selves independently of each other. If it is found, No. They might legislate to eternity, and war or by their daily intercourse, that the rules and regu- Treaty, must finally decide the dispute.

We lations, thus prescribed, interfere or clash with have chosen the latter, and in it they have stipueach other, this lays foundation for compromise lated that they will not capture our vessels; that or treaty between them. Suppose, then, they they will impose no higher duties on our vessels meet, and enter into mutual agreement, so to regu- in their ports than what they impose on all other late their conduct by mutual concessions, as not nations; and that they will surrender up the to interfere with each other, does not this agree-Western posts. We, on our part, have stipulated ment, in the very nature of it, abrogate and do that we will lay no higher duties on their vessels away those regulations which he had antecedent- and goods in our ports than we do upon the vesly, prescribed to himself, and which interfered sels and goods of all other nations; and that we with his neighbor's interest? or if he persist in will pay the debts due to certain of their subjects, the doing of those things which he had stipulated where, by the interposition of our Government, he would not do, would it not be a violation and they have been and now are totally prevented breach of his contract or treaty with his neigh- from collecting them. Now, he would ask, bor? And does it not operate the same on his whether, if Britain should take our vessels, lay neighbor's part, if he shall persist in the doing of higher duties on them than she has stipulated, those things which interfered with his interest, or should not surrender the posts at the time, and which he agreed he would not do?

without anything further done in regard to the Will it be denied that America, as an inde- Treaty, if it would not be a breach and violation pendent and sovereign nation, stands in the same of it on her part? Is there a man here who relation to Great Britain as another sovereign would not cry out, faithless nation! If, then, we and independent nation, as one individual stands still execute those laws which now stand in oppoin relation to another?' He could conceive of no sition to the Treaty, on our part, or refuse to pass difference but this, that in Great Britain the those necessary laws to fulfil the stipulation on King, Lords, and Commons, assume the right of our part, does uot the charge retort on us ? being the great corporation, or body politic of the But, said he, are we sent here to violate the nation, in whom is lodged absolute and despotic faith of the nation, and without declaring war on power, and therefore, set up their will as the our part, or putting ourselves in a state of destandard by which to prescribe all the rules for fence, are we to give a justifiable pretext to Great the regulation of themselves and their slaves. Britain to sweep our whole commerce at one

But America stands a complete moral person ; blow, and plunge the nation into an immediate as the will of the moral agent is the supreme war, without any preparation whatever? If we power which regulates all his moral actions, so is are, do we want those papers for that purpose ? the conjoint and united will of the great mass But he had a different idea of their duty; he took and body of the people of America, the supreme it they were sent there to prescribe such laws power which regulates all her political actions and regulations as are necessary for the commuIn the exercise of this supreme power, she pre- nity, and which do not depend on stipulations scribes by her agents (the Legislature) all those with other independent nations. rules by which to regulate her own actions, as an But, it has been said, shall we make appropriaindependent and sovereign nation, and those rules tions of money, without acting as free agents ? are, in the most strict sense, laws by which each He would answer this by another question. Can we individual of the community are bound; but can have an agency, unless we assume the power, where those rules extend to control the actions of other the people have not, by the Constitution, appointindependent nations, any more than the rules he ed us their agents ?' He would answer, further. prescribed for the regulation of his conduct can that we have the same agency as in appropriating extend to control the actions of his neighbor ? money for the President's salary, with the only

Then, said he, let us take a view of the actual difference, that should they withhold appropriasituation we were in with respect to Great Bri- tions, there the consequence could not be so very tain previous to this Treaty. Did not she claim important; but if they withhold appropriations a right to almost every port in the world to which when necessary to fulfil a Treaty, they strike a we could carry on commerce ? and could America deadly blow, by violating the faith of the nation, claim any property, other than by stipulation, to plunging them into all the horrors of war, and a single port in the world more than twenty the blood of thousands might be chargeable upon leagues from her own shore? Look into the them. definitive Treaty of Peace with Great Britain, Much had been said, by a gentleman from Virand he thought every one must grant this. Had ginia, about the supreme, unlimited and undefined pot Britain, then, as a nation, an undoubted right to powers of the President, and the co-operative impose such duties upon our vessels as she pleased, land co-ordinate powers of that House. * In an

4th Con.--24

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

swer to those ingenious observations, he had to not mark out the powers and limits of each ? Does say, that that gentleman left our own Consti- it not guaranty to each State its republican form tution, and theorized extremely well upon the of Government; and is not the right of altering Constitution of Great Britain. But he confessed or creating anew the Constitution reserved to the he had no just ideas of two separate and distinct | people? Look to the Constitution, and it will be supreme powers in our Government; but if they found that the PRESIDENT, Senate, and this House, were to adopt the principles of the British Con- | cannot, with all their combined powers, interfere stitution, to be consistent, they must balance the with the personal security, personal liberty, or powers as they have done; make the office of our private property of the people, unless in raising PRESIDENT hereditary, give him a creative power taxes, and the mode in which that is to be done is to make nobles, privy counsellors, archbishops, directed by the Constitution. Yet it is said we and bishops, and a prime minister; and let them have not the shadow of liberty left, when the constitute one-half of the Legislature, and add to whole combined powers of the Federal Governthat power a patrimonial revenue, and let himment cannot interfere to say what compensation I have a private purse for his prime minister to use shall have for false imprisonment, defaming my in this House, and then he may stand some chance character, or trespassing upon my person or propto maintain his power. But if this is a contest erty. about power, suppose they pass this resolution ; ! From the observations that have been made, he call for the papers, and if the President should thought himself justifiable in tracing those extrarefuse to deliver them, and say it was an infringe-vagant ideas, and this extraordinary diversity of ment upon his prerogative, an encroachment upon opinion, to its source. his supreme power, which was sacred, then would It was not long since, said Mr. B., they were I say he talked as much like a haughty British groaning under the oppressions of Great Britain, King, as they all along had been talking like an and they had to wade through fields of blood to omnipotent British Parliament; and he was not at throw off her cruel power. The indignation with a loss to know how the contest would end ; for it which they were then justly fired, though it has would be only for them to proscribe him as a des- been smothered, is not extinct ; though they, as inpot, grasping at all power, blow up the popular re-dividuals, are noble, generous, just, and humane, sentment, and the same blind zeal and false patri- yet, as a nation, consisting of King, Lords, and otism which had led to the burning in effigy mem- Commons, possessed with that absolute despotic bers of that House, of the Senate, and the Minis- power he had described, they are imperious, ter who negotiated this Treaty, would lead him haughty, and cruel, and, riding triumphant misto the scaffold, and not all his well-earned glory, tress of the seas, they insult all nations of the nor all his god-like virtues, would save his life world. They had lately felt their insults, and in twenty-four hours. But if he had a just idea of many cases their influence, and even cruelty. that great and good man, he would hold a very This, said he, has raised afresh our indignation. different language. Little would he say about his On the other hand, we behold France, our genesupreme powers or absolute prerogatives; but he rous ally, who has participated in the struggle, and thought he might justly say, that, by the Consti- fought by our side in the cause of liberty, now tution, from whence all power was derived, he, struggling in her turn for the same noble prize. We with the Senate, were placed as the sole agents of see Britain wielding the tyrannic sword to strike her the nation for making Treaties, and he the depo- dead in the struggle. While our hearts swell with site for those papers. That we were not the sympathetic emotions for France, our indignation agents of the nation to interfere in this business; is carried to a degree of madness against Britain; that we were therefore assuming power pot dele we cry out for the Spirit of Seventy-six; are for gated to us; violating the Constitution; and that plunging into the war to make a common cause he could not, consistently with the trust reposed in with France, to extirpate tyrants from the earth. him, resign those papers to our lawless demands. If our hand is stayed, the picture which we are

But it has been said, that if the PRESIDENT and beholding is so strong, and the impressions so forSenate possessed this uncontrollable power to make cible upon the mind, that when we turn our eyes Treaties, they might bind up the whole Legisla- from Britain to America, we behold a King in tive power ; they might even annihilate it, and our PRESIDENT, and a House of Lords in our Sesubstitute an insignificant Indian tribe as a Legis- nate; we imagine they are in league with deslature for the nation, and that we had not even a pots, and are ready to fall on and wreak our venshadow of liberty left.

geance on them. Is it possible that gentlemen who give theni- These, he imagined, were the formidable rocks selves time to think and explore the ground they of Scylla, on the one hand, and Charybdis on the go over, should be thus extravagant? Is it not other, which have endangered our country. And agreed by all, that if a Treaty violates the Con- had there been any man at the helm of our politistitution, it is void in itself ? Does not the Con-cal ship who possessed a less share of firm patristitution particularly point out how the Legisla-otic prudence, or a less share of the unbounded ture shall be formed; what shail be the qualifica- love and confidence of the people than our present tions of its members, and how they shall be elect- Executive, God only knows where we should ed? Does it not point out. with the same preci- have landed! Whether we should not, ere now, sion, how each other department of Governinent have been plunged in all the horrors of foreign shall be constituted and organized; and does it land domestic war; guillotines going, blood streams

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